Mrutyunjaya N. Jena Vs. Republic of India - Court Judgment

SooperKanoon Citationsooperkanoon.com/1100495
CourtOrissa High Court
Decided OnDec-02-2013
AppellantMrutyunjaya N. Jena
RespondentRepublic of India
Excerpt:
crlrev no.756 of 2013 02 02.12.2013 heard learned counsel for the petitioner and the learned standing counsel for the c.b.i. perused the records.2. the petitioner assails the order dated 26.07.2013 passed by the learned special judge (cbi), bhubaneswar in t.r. no.36 of 2010 in rejecting the application filed by him under section 227 of the code of criminal procedure, 1973, hereinafter referred as the ‘code’ for brevity, to discharge him from the charges under section 120-b, 420, 468, 471 i.p.c. and section 13(2) read with section 13(1)(d) of the prevention of corruption act, 1988, hereinafter referred as the ‘act’.3. in course of hearing, the learned counsel for the petitioner raised two points; firstly it is submitted that the petitioner no.being a public servant, as defined under section 2 of the act, canno.be charged for the offence under sections 120-b, 420, 468, 471 i.p.c. and section 13(2) read with section 13(1)(d) of the act; secondly, it is contended that there is no material on record to come to the conclusion that there has been any conspiracy between the petitioner and the other two accused persons to commit any crime as there is no written document to that effect nor, it is submitted that, the prosecution alleged that there is oral evidence to that effect.4. mr. s.k.padhi, learned senior standing counsel for the c.b.i. relies upon the reported case of vivek gupta v. central bureau of investigation and another, (2003) 8 scc 628 contending that the petitioner can be charged for the aforesaid offences along with the co-accused persons, who are public servants. 2 5. the prosecution case, in brief is that the present petitioner as proprietor of utkal fabrication and engineering works, rourkela applied for certain loan and loan of rs.10 lakh was sanctioned under credit guarantee fund for small scale industries. it is further alleged by the prosecution that no firm in the name and style of utkal fabrication and engineering works in shed nos. 4 and 5, nayabazar, rourkela was in existence. during investigation, it came to light that the petitioner entered into criminal conspiracy with chaitanaya badi, the then branch manager, canara bank, bishra road branch, rourkela and dipankar mishra, the then officer of canara bank of said branch to commit cheating and fraud to misappropriate public money. in pursuance thereto, the branch manager sanctioned the loan of rs.10 lakhs in favour of the present petitioner falsely certifying his credit worthiness. the amount was sanctioned in favour of the said non-existence firm. thereafter, f.i.r. was lodged and investigating machinery was set into motion. on completion of investigation, charge sheet has been submitted against the then branch manager and the then officer of canara bank, bishra road branch, rourkela along with the petitioner. it is no.disputed that the present petitioner is no.a public servant. so no.the question arises, whether the present petitioner can be tried along with other two accused persons by the special court under the prevention of corruption act and whether there is sufficient material on record to frame charges against the present petitioner.6. section 3 of the act provides power of the central government or the state government to appoint special judges to try any offence punishable under the act and any conspiracy to commit or any attempt to commit or any abetment of any of the 3 offences specified in clause (a). section 4 of the act provides for the cases triable by the special judges. sub-section (1) provides that notwithstanding anything contained in the code, or in any other law for the time being in force, the offences specified in subsection (1) of section 3 shall be tried by special judges only. subsection (2) provides that every offence specified in sub-section (1) of section 3 shall be tried by the special judge for the area within which it was committed, or, as the case may be, by the special judge appointed for the case, or where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the central government. sub-section (3) provides that while trying any case, a special judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the code of criminal procedure, 1973 (2 of 1974), be charged at the same trial. section 22 of the act provides that the provision of the code, a special judge shall, in their application to any proceeding in relation to an offence punishable under the act, have effect subject to certain modifications specified therein. the modifications of the provisions of the code in their application to offences punishable under the act do no.modify the provisions of chapter xvii of the code, which is relevant for the present case. section 220 of the code provides trial for more than one offence. it is apt to take note of the exact words appearing in the said section, which reads as follows : “220. trial for more than one offence.- (1) if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) when a person charged with one or more 4 offences of criminal breach of trust or dishonest misappropriation of property as provided in subsection (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) nothing contained in this section shall affect section 71 of the indian penal code (45 of 1860).”. section 223 of the code provides for those persons who may be charged jointly. the relevant portion of the said section is quoted below: “223. what persons may be charged jointly.- the following persons may be charged and tried together, namely – (a) persons accused of the committed in the course transaction. same offence of the same (b) persons accused of an offence and persons accused of abetment or, or attempt to commit, such offence; 5 (c) x (d) persons accused committed in the transaction. (e)-(g) 7. x x x of different offences course of the same x x”. taking into consideration the aforesaid provisions, the supreme court in vivek gupta v. central bureau of investigation and another (supra) has amplified the law governing the field. it is appropriate to quote the relevant portion of the judgment. “13. section 223 of the code of criminal procedure has no.been excluded either expressly or by necessary implication no.has the same been modified in its application to trials under the act. the said provision therefore is applicable to the trial of an offence punishable under the act the various provisions of the act which we have quoted earlier make it abundantly clear that under the provisions of the act a special judge is no.precluded altogether from trying any other offence, other than offences specified in section 3 thereof. a person charged of an offence under the act may in view of sub-section (3) of section 4 be charged at the same trial of any offence under any other law with which he may, under the code of criminal procedure, be charged at the same trial. thus a public servant who is charged of an offence under the provisions of the act may be charged by the special judge at the same trial of any offence under ipc if the same is committed in a manner contemplated by section 220 of the code.14. the only narrow question which remains to be answered is whether any other person who is also charged of the same offence with which the coaccused is charged, but which is no.an offence specified in section 3 of the act, can be tried with the co-accused at the same trial by the special judge. we are of the view that since sub-section 6 (3) of section 4 of the act authorizes a special judge to try any offence other than an offence specified in section 3 of the act to which the provisions of section 220 apply, there is no reason why the provisions of section 223 of the code should no.apply to such a case. section 223 in clear terms provides that persons accused of the same offence committed in the course of the same transaction, or persons accused of different offences committed in the course of the same transaction may be charged and tried together. applying the provisions of sections 3 and 4 of the act and sections 220 and 223 of the code of criminal procedure, it must be held that the appellant and his co-accused may be tried by the special judge in the same trial.15. this is because the co-accused of the appellant who have been also charged of offences specified in section 3 of the act must be tried by the special judge, who in view of the provisions of sub-section (3) of section 4 and section 220 of the code may also try them of the charge under section 120-b read with section 420 ipc. all the three accused, including the appellant, have been charged of the offence under section 120-b read with section 420 ipc. if the special judge has jurisdiction to try the co-accused for the offence under section 120-b read with section 420 ipc, the provisions of section 223 are attracted. therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. otherwise it appears rather incongruous that some of the conspirators charged of having committed the same offence may be tried by the special judge while the remaining conspirators who are also charged of the same offence will be tried by another court, because they are no.charged of any offence specified in section 3 of the act.16. reliance was placed by the respondent on the judgment in union of india v. i.c.lala, (1973) 2 7 scc 72 : 1973 scc (cri) 738: air 1973 sc 2204, but the counsel for the appellant distinguished that case submitting that the facts of that case are distinguishable inasmuch as in that case apart from the two army offers, even the third appellant who was a businessman, was charged of the offence punishable under section 120-b ipc read with section 5(2) of the act. such being the factual position in that case, section 3(1)(d) of the relevant act was clearly attracted. in the instant case he submitted, there was no charge against the appellant of having conspired to commit an offence punishable under the act. the aforesaid judgment refers to an earlier decision of this court in the case of state of a.p. v. kandimalla subbaiah, air 1961 sc 1241 : (1961) 2 cri lj 302. the learned counsel for the appellant distinguishes that case also for the same reason, since in that case as well the respondent was charged of conspiracy to commit an offence punishable under the act.”.8. such clear ratio decided in the aforesaid case leaves no doubt in the mind of this court that the accused though is no.a public servant still he can be charged for the offences as described above as there is an allegation of criminal conspiracy punishable under section 120-b of the i.p.c. thus the first contention raised by the learned counsel for the petitioner is no.acceptable.9. so far as the second contention is concerned, section 120-a of the i.p.c. defines “criminal conspiracy”.. the basic ingredients of the offence of criminal conspiracy are (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act, or (b) an act which is no.illegal in itself but is done by illegal means. it is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means 8 is sine qua no.of criminal conspiracy. the supreme court in shivnarayan laxminarayan joshi and others v. state of maharashtra, (1980) 2 scc 465, laid down that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. in mohammad usman mohammad hussain maniyar v. state of maharashtra : (1981) 2 acc 443, it was observed that for an offence under section 120-b, the prosecution need no.necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.10. in this case, having perused the records, the learned special judge has held that all the accused persons entered into a compromise to cause an illegal act; such as, cheating and forgery. as the allegation prima facie shows that there is a criminal conspiracy, the charge has been rightly framed against the accused persons. there is no reason to come to a different conclusion. in fact, the reported case cited by the learned counsel for the petitioner i.e. yogesh alias sachin jagdish joshi v. state of maharashtra, (2010) 45 ocr (sc) 503 goes against the contention raised by the learned counsel for the petitioner. at paragraph 25 of the judgment, the supreme court mentioned that two or more persons for doing an illegal act or an act by illegal means is sine qua no.of the criminal conspiracy but it may no.be possible to prove the agreement between them by direct proof. nevertheless, existence of the conspiracy and its objective can be 9 inferred from the surrounding circumstances and the conduct of the accused.11. in that view of the matter, this court comes to the conclusion that there is no reason to interfere in the findings recorded by the learned special judge (c.b.i.), bhubaneswar and the revision application is devoid of merit and the same is dismissed. pending misc. case is also dismissed as infructuous. urgent certified copy of this order be granted on proper application. j.…………………… s.k.mishra, j.
Judgment:

CRLREV NO.756 of 2013 02 02.12.2013 Heard learned counsel for the petitioner and the learned Standing Counsel for the C.B.I. Perused the Records.

2. The petitioner assails the order dated 26.07.2013 passed by the learned Special Judge (CBI), Bhubaneswar in T.R. No.36 of 2010 in rejecting the application filed by him under Section 227 of the Code of Criminal Procedure, 1973, hereinafter referred as the ‘Code’ for brevity, to discharge him from the charges under Section 120-B, 420, 468, 471 I.P.C. and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, hereinafter referred as the ‘Act’.

3. In course of hearing, the learned counsel for the petitioner raised two points; firstly it is submitted that the petitioner No.being a public servant, as defined under Section 2 of the Act, canNo.be charged for the offence under Sections 120-B, 420, 468, 471 I.P.C. and Section 13(2) read with Section 13(1)(d) of the Act; secondly, it is contended that there is no material on record to come to the conclusion that there has been any conspiracy between the petitioner and the other two accused persons to commit any crime as there is no written document to that effect nor, it is submitted that, the prosecution alleged that there is oral evidence to that effect.

4. Mr. S.K.Padhi, learned Senior Standing Counsel for the C.B.I. relies upon the reported case of Vivek Gupta v. Central Bureau of Investigation and another, (2003) 8 SCC 628 contending that the petitioner can be charged for the aforesaid offences along with the co-accused persons, who are public servants. 2 5. The prosecution case, in brief is that the present petitioner as Proprietor of Utkal Fabrication and Engineering works, Rourkela applied for certain loan and loan of Rs.10 lakh was sanctioned under Credit Guarantee Fund for small scale industries. It is further alleged by the prosecution that no firm in the name and style of Utkal Fabrication and Engineering Works in shed Nos. 4 and 5, Nayabazar, Rourkela was in existence. During investigation, it came to light that the petitioner entered into criminal conspiracy with Chaitanaya Badi, the then Branch Manager, Canara Bank, Bishra Road Branch, Rourkela and Dipankar Mishra, the then officer of Canara Bank of said branch to commit cheating and fraud to misappropriate public money. In pursuance thereto, the Branch Manager sanctioned the loan of Rs.10 lakhs in favour of the present petitioner falsely certifying his credit worthiness. The amount was sanctioned in favour of the said non-existence firm. Thereafter, F.I.R. was lodged and Investigating machinery was set into motion. On completion of investigation, charge sheet has been submitted against the then Branch Manager and the then Officer of Canara Bank, Bishra Road Branch, Rourkela along with the petitioner. It is No.disputed that the present petitioner is No.a public servant. So No.the question arises, whether the present petitioner can be tried along with other two accused persons by the Special Court under the Prevention of Corruption Act and whether there is sufficient material on record to frame charges against the present petitioner.

6. Section 3 of the Act provides power of the Central Government or the State Government to appoint Special Judges to try any offence punishable under the Act and any conspiracy to commit or any attempt to commit or any abetment of any of the 3 offences specified in clause (a). Section 4 of the Act provides for the cases triable by the Special Judges. Sub-section (1) provides that notwithstanding anything contained in the Code, or in any other law for the time being in force, the offences specified in Subsection (1) of Section 3 shall be tried by Special Judges only. Subsection (2) provides that every offence specified in Sub-section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. Sub-section (3) provides that while trying any case, a Special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. Section 22 of the Act provides that the provision of the Code, a Special Judge shall, in their application to any proceeding in relation to an offence punishable under the Act, have effect subject to certain modifications specified therein. The modifications of the provisions of the Code in their application to offences punishable under the Act do No.modify the provisions of Chapter XVII of the Code, which is relevant for the present case. Section 220 of the Code provides trial for more than one offence. It is apt to take note of the exact words appearing in the said section, which reads as follows : “220. Trial for more than one offence.- (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) When a person charged with one or more 4 offences of criminal breach of trust or dishonest misappropriation of property as provided in subsection (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this Section shall affect Section 71 of the Indian Penal Code (45 of 1860).”

. Section 223 of the Code provides for those persons who may be charged jointly. The relevant portion of the said section is quoted below: “223. What persons may be charged jointly.- The following persons may be charged and tried together, namely – (a) persons accused of the committed in the course transaction. same offence of the same (b) persons accused of an offence and persons accused of abetment or, or attempt to commit, such offence; 5 (c) x (d) persons accused committed in the transaction. (e)-(g) 7. x x x of different offences course of the same x x”. Taking into consideration the aforesaid provisions, the Supreme Court in Vivek Gupta v. Central Bureau of Investigation and another (supra) has amplified the law governing the field. It is appropriate to quote the relevant portion of the judgment. “13. Section 223 of the Code of Criminal Procedure has No.been excluded either expressly or by necessary implication No.has the same been modified in its application to trials under the Act. The said provision therefore is applicable to the trial of an offence punishable under the Act The various provisions of the Act which we have quoted earlier make it abundantly clear that under the provisions of the Act a Special Judge is No.precluded altogether from trying any other offence, other than offences specified in Section 3 thereof. A person charged of an offence under the Act may in view of sub-section (3) of Section 4 be charged at the same trial of any offence under any other law with which he may, under the Code of Criminal Procedure, be charged at the same trial. Thus a public servant who is charged of an offence under the provisions of the Act may be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated by Section 220 of the Code.

14. The only narrow question which remains to be answered is whether any other person who is also charged of the same offence with which the coaccused is charged, but which is No.an offence specified in Section 3 of the Act, can be tried with the co-accused at the same trial by the Special Judge. We are of the view that since sub-section 6 (3) of Section 4 of the Act authorizes a Special Judge to try any offence other than an offence specified in Section 3 of the Act to which the provisions of Section 220 apply, there is no reason why the provisions of Section 223 of the Code should No.apply to such a case. Section 223 in clear terms provides that persons accused of the same offence committed in the course of the same transaction, or persons accused of different offences committed in the course of the same transaction may be charged and tried together. Applying the provisions of Sections 3 and 4 of the Act and Sections 220 and 223 of the Code of Criminal Procedure, it must be held that the appellant and his co-accused may be tried by the Special Judge in the same trial.

15. This is because the co-accused of the appellant who have been also charged of offences specified in Section 3 of the Act must be tried by the Special Judge, who in view of the provisions of sub-section (3) of Section 4 and Section 220 of the Code may also try them of the charge under section 120-B read with Section 420 IPC. All the three accused, including the appellant, have been charged of the offence under section 120-B read with Section 420 IPC. If the Special Judge has jurisdiction to try the co-accused for the offence under Section 120-B read with Section 420 IPC, the provisions of Section 223 are attracted. Therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. Otherwise it appears rather incongruous that some of the conspirators charged of having committed the same offence may be tried by the Special Judge while the remaining conspirators who are also charged of the same offence will be tried by another court, because they are No.charged of any offence specified in Section 3 of the Act.

16. Reliance was placed by the respondent on the judgment in Union of India v. I.C.Lala, (1973) 2 7 SCC 72 : 1973 SCC (Cri) 738: AIR 1973 SC 2204, but the counsel for the appellant distinguished that case submitting that the facts of that case are distinguishable inasmuch as in that case apart from the two army offers, even the third appellant who was a businessman, was charged of the offence punishable under section 120-B IPC read with Section 5(2) of the Act. Such being the factual position in that case, Section 3(1)(d) of the relevant Act was clearly attracted. In the instant case he submitted, there was no charge against the appellant of having conspired to commit an offence punishable under the Act. The aforesaid judgment refers to an earlier decision of this Court in the case of State of A.P. v. Kandimalla Subbaiah, AIR 1961 SC 1241 : (1961) 2 Cri LJ 302. The learned counsel for the appellant distinguishes that case also for the same reason, since in that case as well the respondent was charged of conspiracy to commit an offence punishable under the Act.”

.

8. Such clear ratio decided in the aforesaid case leaves no doubt in the mind of this Court that the accused though is No.a public servant still he can be charged for the offences as described above as there is an allegation of criminal conspiracy punishable under Section 120-B of the I.P.C. Thus the first contention raised by the learned counsel for the petitioner is No.acceptable.

9. So far as the second contention is concerned, Section 120-A of the I.P.C. defines “criminal conspiracy”.. The basic ingredients of the offence of criminal conspiracy are (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act, or (b) an act which is No.illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means 8 is sine qua No.of criminal conspiracy. The Supreme Court in Shivnarayan Laxminarayan Joshi and others v. State of Maharashtra, (1980) 2 SCC 465, laid down that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. In Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra : (1981) 2 ACC 443, it was observed that for an offence under Section 120-B, the prosecution need No.necessarily prove that the perpetrators expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by necessary implication.

10. In this case, having perused the records, the learned Special Judge has held that all the accused persons entered into a compromise to cause an illegal act; such as, cheating and forgery. As the allegation prima facie shows that there is a criminal conspiracy, the charge has been rightly framed against the accused persons. There is no reason to come to a different conclusion. In fact, the reported case cited by the learned counsel for the petitioner i.e. Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2010) 45 OCR (SC) 503 goes against the contention raised by the learned counsel for the petitioner. At paragraph 25 of the judgment, the Supreme Court mentioned that two or more persons for doing an illegal act or an act by illegal means is sine qua No.of the criminal conspiracy but it may No.be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be 9 inferred from the surrounding circumstances and the conduct of the accused.

11. In that view of the matter, this Court comes to the conclusion that there is no reason to interfere in the findings recorded by the learned Special Judge (C.B.I.), Bhubaneswar and the revision application is devoid of merit and the same is dismissed. Pending Misc. Case is also dismissed as infructuous. Urgent certified copy of this order be granted on proper application. J.…………………… S.K.Mishra, J.